Kerala High Court
Shaji vs Remya on 28 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 28TH DAY OF APRIL 2023 / 8TH VAISAKHA, 1945
O.P.(CRL.) NO.169 OF 2023
(AGAINST THE ORDER IN M.C.329/2016
OF FAMILY COURT, THRISSUR)
PETITIONER/PETITIONER IN M.P.No.1975/RESPONDENT IN
CRL.M.P.(EXE) 561/2020:
SHAJI, AGED 43 YEARS, S/O.KUTTAN, SHAJI BHAVAN,
KOZHUKULLY POST AND VILLAGE, MURKANIKKARA DESOM,
THRISSUR THALUK & DISTRICT, PIN - 680 702,
NOW RESIDING AT SHAJI, C/O.SHAJIL.C,
THOTTAPPILLY HOUSE, NANDIPULAM POST,
MUKUNDAPURAM THALUK, PIN - 680 312
BY ADV V.C.MADHAVANKUTTY
RESPONDENTS/RESPONDENTS IN MP 1975/2022/PETITIONERS IN
CRL.M.P.(EXE) 561/2020 & STATE:
1 REMYA, AGED 32 YEARS, D/O.RAMACHANDRAN,
MANATHALA HOUSE, MANATHALA POST, CHAVAKKAD THALUK,
THRISSUR DISTRICT, PIN - 680 506.
2 MINOR SREYA, AGED 10 YEARS, D/O.REMYA, REP.BY MOTHER
& GUARDIAN-1ST RESPONDENT, MANATHALA HOUSE,
MANATHALA POST, CHAVAKKAD THALUK, THRISSUR DISTRICT,
PIN - 680 506
3 MINOR SREEJA, AGED 6 YEARS, D/O.REMYA, REP.BY MOTHER
& GUARDIAN-1ST RESPONDENT, MANATHALA HOUSE,
MANATHALA POST, CHAVAKKAD THALUK, THRISSUR DISTRICT,
PIN - 680 506
4 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031
PUBLIC PROSECUTOR, SMT.BINDHU O.V.
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
28.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(Crl.) 169/2023
2
ORDER
(Dated: 28th April, 2023)
The petitioner is the husband of the 1st respondent, is undergoing
imprisonment as per order dated 15th June, 2022 in Crl.M.P.(Exe) 561 of
2020 in M.C.No.329 of 2016 on the file of the Family Court, Thrissur. As
per the said order, the Family Court directed that the petitioner is liable to
be sentenced for a total period of 180 days or till payment of arrears. The
petitioner filed M.P.No.1975 of 2022 in M.P.No.561 of 2020 in M.C.No.329
of 2016 for a direction to the Superintendent of Central Prison,
Malappuram to treat the sentence imposed on four execution petitions as
one and the sentence to run concurrently. The said petition was also
dismissed on 24.01.2023 by the Trial Court, holding that the sentence
awarded by the Trial Court in four different execution petitions shall not
run concurrently. Challenging these two orders this O.P. Crl is filed.
2. The contention raised by the counsel for the appellant is that
as per Section 125(3) of the Criminal Procedure Code, 'if a person fails to
comply with the order, any Magistrate may for every breach of the order
issue a warrant for levying the amount due in the manner provided for
levying fines and may sentence such person for the whole or any part of
O.P.(Crl.) 169/2023
each month's allowance for maintenance or the interim maintenance and
expenses of proceedings as the case may be remaining unpaid after the
execution of the warrant to imprisonment for a term which may extend to
one month or until payment if sooner made'. The impugned order Ext.P1
directs the petitioner to undergo imprisonment for default of payment of
maintenance for a period of 20 days per month, for each default, i.e. for
180 days for 9 months or until payment of the arrears is made if sooner.
3. The counsel for the petitioner relies on the judgment of the
Apex Court in Shahada Khatoon v. Amjad Ali reported in [1999 (5) SCC 672],
wherein it was held that for noncompliance with the order of the
Magistrate to make payment of maintenance, the Magistrate has no power
to impose the sentence for more than one month. The Apex Court has also
held that the power under Section 125(3) is clear and it circumscribes the
power of the Magistrate to impose imprisonment for a term which may
extend one month or until the payment is sooner made. The power of the
Magistrate cannot be enlarged and therefore, the only remedy would be
after the expiry of one month for breach or noncompliance with the orders
of the magistrate, the wife can approach the Magistrate again for similar
relief. By no stretch of imagination, can the Magistrate be permitted to
O.P.(Crl.) 169/2023
impose the sentence for more than one month. He also relies on the
decision reported in Gopika M. v. A.T. Stalin [2014(4) KLT 907] and Sunil
Kumar v. Jalaja and another [2007(1) KLT 877]. In view of the settled
position of law, I am of the opinion that Ext.P1 and P3 orders passed by the
Family Court, Thrissur, are to be set aside as it is against the dictum laid
down by the Apex Court. The petitioner is undergoing imprisonment from
15.06.2022 onwards and the period of 180 days is also over.
In the result, this O.P. is disposed of setting aside Ext.P1 and P4. The
Superintendent of Central Prison, Malappuram, is directed to release the
petitioner immediately. Learned Public Prosecutor is directed to
communicate the above direction to the Superintendent of Central Prison,
Malappuram. It is made clear that the release of the petitioner under this
order will not stand in the way of the respondent to moving the Family
Court for execution of the order for subsequent breaches.
Sd/-
BASANT BALAJI, JUDGE
ss
O.P.(Crl.) 169/2023
APPENDIX OF OP(CRL.) 169/2023
PETITIONER EXHIBITS:
Exhibit P1 TRUE COPY OF THE ORDER IN
CRL.MP(EXE)561/2020 IN MC 329/2016 DATED
15.06.2022
Exhibit P2 TRUE COPY OF THE PETITION FILED BY THE
PETITIONER BEFORE THE FAMILY COURT,
THRISSUR AS MP 1975/2022 IN MP 561/2020 IN
MC 329/2016 DATED 30.12.2022
Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE FAMILY
COURT, THRISSUR IN MP 1975/2022 IN MP
561/2020 IN MC 329/2016 DATED 24.1.2023.
